Sex is a Complicated Thing

Announcing that the sports authorities were shabby, intrusive and untruthful in their handling of the case of Caster Semenya, the 18-year-old South African runner who won a gold medal in Berlin in August, 2009 is one thing. Deciding who is or is not a woman is another. On October nth the International Association of Athletics Federations said it would try

to settle this question for future games.

They will need brainpower to match the muscles that they administer. Scientists reckon that at least 1.7% of people are born with one of several dozen possible intersexual conditions. A few are apparent from birth, some become visible only at puberty and many may never be identified. Instead of two x chromosomes, some women have three; others have two xxs and an extra y, or one of many other variations. Men may have an extra x chromosome or two on top of their normal xy combination.

Not every culture divides the sexes absolutely. North American tribal customs feature "two-spirit" people who combined male and female attributes (anthropologists call these "berdache", from a French word for catamite). In South Asia hijras are considered neither male nor female. They may be intersex people or men who take on feminine identities, sometimes after castration. They often have horrid lives.

Anne Tamar-Mattis of Advocates for Informed Choice, an American pressure group, says that though legal systems assume that male and female are indisputable categories, none defines them. A rare exception is in Australia, where a Human Rights Commission report in March 2009 recommended that adults should be allowed to register their sex as "unspecified" on documents such as passports. In February 2009 an Austrian court ruled that surgery was not a prerequisite for sex and name changes. Similarly, Germany's Federal Supreme Court ruled in 2005 that re¬garding an operation as a precondition for a legally valid sex change was increasingly problematic.

Other courts have created more problems than they solve. In 2000, for example, a Texan widow called Christie Littleton sued her late husband's doctor for malpractice. But during the case, it was revealed that she herself had become a woman only after a sex-change operation. The judge ruled that as surgery does not change chromosomes and that as Texas law does not recognise same-sex unions, the marriage was void. The judge recognised the ramifications of a genetic definition of marriage. It could invalidate some unions involving an intersex partner, but also allow a genetic male and female to marry even if they look as if they belong to the same sex.

One of the few judicial decisions to deal explicitly with intersex conditions came in 1999 from the Constitutional Court of Colombia. It restricted surgical interventions on children born with atypical genitals. This was rarely urgent, it said, and should be postponed until children are old enough to give their consent. That cautious approach has not caught on. Ms Tamar-Mattis says that American doctors are slowly becoming less heavy-handed, but prompt surgery-genital mutilation in the eyes of critics—remains the norm in industrialised countries. So does ill-treatment. Just ask Ms Semenya, whose privacy has been trampled and achievement undermined. Her "gender verification" tests are due to be published month.